The High Court has sent a message through a new judgment that litigants should not seek advantage from judges’ hardline stance on costs budgeting.
The claimants in Freeborn & Anor v Marcal (t/A Dan Marcal Architects) had argued that their opponents caused a ‘gross delay’ in proceedings after serving a budget seven days before the case management conference last Friday.
But The Honourable Mr Justice Coulson said the defendant had caused no delay and had simply followed special instructions set out by the court.
Coulson said the courts are far less forgiving of non-compliance than they used to be, but that tougher approach should not be ‘abused’ in the way that he said occurred in this case. He suggested that applications to take advantage of procedural glitches had increased recently and this judgment was designed ‘pour encourager les autres’.
Under civil procedure rules, parties are usually required, unless ordered otherwise, to file and exchange budgets not later than 21 days before the first CMC. But in this case the technology and construction court office had expressly written requiring the parties to file not less than seven days before the CMC.
The defendant, represented by City firm Caytons Law, said they relied on the court office letter and had complied with instructions.
The claimants, represented by London firm Healys LLP, took what the court called an ‘uncompromising stance’ and insisted on 21 days, prompting the defendant to make a formal application for relief from sanctions.
Coulson said Marcal was entitled to conclude that the court had ordered the deadline change, and it was immaterial that solicitors should have considered whether the court’s letter contained an error.
‘A busy litigation solicitor is entitled simply to rely on the date specified in writing by the court office, rather than embarking on an investigation into whether or not the letter contained an error,’ said the judge.
Coulson said the delay was not serious or significant, was for a good reason and was not deliberate.
Granting relief, he ordered the claimants to pay the defendant’s £1,300 costs of making the application.
He added: ‘Parties need to consider carefully whether the alleged breach of the rules is, on analysis, any such thing and, even if it is, whether it is proportionate and appropriate to require or oppose an application for relief from sanctions in all the circumstances of the case.’